To deal with rape, need to change whole justice delivery system, not just laws

To deal with rape, need to change whole justice delivery system, not just laws

Mubarak Ansari

Monday, 7 May 2018

The recent rape cases of Kathua and Unnao forced the Central government to promulgate an ordinance calling for severe punishment including life imprisonment and death sentence for rapists. However, lawyers, activists and police officials citing the dismal conviction rate, say there is a need to do more and point out flaws in the investigation system.

The recent rape cases of Kathua and Unnao forced the Central government to promulgate an ordinance calling for severe punishment including life imprisonment and death sentence for rapists. However, lawyers, activists and police officials citing the dismal conviction rate, say there is a need to do more and point out flaws in the investigation system.

As per the National Crime Records Bureau (NCRB) report ‘Crime in India 2016’, in 94.6 per cent of the rape cases reported in 2016, the offenders were known to the victims. The conviction rate for rape cases is about 30 per cent. 43.3 per cent of the total female rape victims (39,068) were minors.

Flawed investigation
Advocate Tosif Shaikh said, “The first reason is due to the flawed police investigation and another factor is the unwillingness of witnesses to come forward. The Supreme Court has ordered to set up fast track courts to expedite trial in rape cases. But there is no procedure for fast track investigation. The apex court has also come out with guidelines for track investigation but unfortunately many are not aware of this. Also, Judicial Magistrate (First Class) under section 157 (procedure for investigation) of Criminal Procedure Code (CrPC) has the power to supervise investigation which seldom happens.”

Advocate Vijayalaxmi Khopade pointed out several lacunae in the justice delivery system. “The issue of low conviction rate is based on the presumption of the guilt of the alleged accused but this is, however, not the actual scenario. The courts while dispensing justice take into account evidence brought forth on record which is inherently based upon the investigation.”

Turning hostile
“The judgment of the court is dependent upon the nature of the investigation, documentary evidence etc. The oral evidence of the victim plays a prime role in determining the guilt of the accused and also a major role in his conviction. One prime reason for low conviction rate is that the witnesses are unable to maintain their credibility as in the court on many occasions they are known to have turned hostile. It may be a public sentiment that once an accused is charged with an offence, especially in the nature of sexual offences, he ought to be penalised.
“However, the justice delivery system is far removed from such generic sentiments and is governed by provisions of Indian Penal Code (IPC), CrPC, Indian Evidence Act and other relevant Acts,” Khopade said.

Former director general of police Meeran Borwankar said rape investigations generally are not other witness-dependent. “But if the police do find some, the tendency not to support the prosecution and to turn hostile is high and the accused manage to pressurise or purchase them in most cases,” she added.

False cases
Another criminal lawyer Kainat Shaikh believes corruption and false cases are major reasons. “There is no liability on investigation officer (IO) in case of acquittal or false implications. The should be accountability for false implications. This will enable officers to investigate cases seriously,” he suggested.

Present scenario
94.6% Rape cases in which the offenders were known to the victims
30 % Conviction rate for rape cases
43.3% Of the total female rape victims (39,068) were minors

“For a conviction in a rape case, two pieces of evidence are crucial. First, the victim standing by her statement in the court. Accused being mostly from family/known person, most victims go back on their statements/FIR and do not support prosecution. The second is medical evidence. As most cases are reported late to police either the accused destroys the evidence or doctors do not give conclusive medical reports supporting rape.” — Meeran Borwankar, former director general of police (DGP)